Citizens' Street Railroad Co. v. Hobbs
| Citation | 43 N.E. 479,15 Ind.App. 610 |
| Decision Date | 08 April 1896 |
| Docket Number | 1,771 |
| Parties | CITIZENS' STREET RAILROAD CO. v. HOBBS |
| Court | Court of Appeals of Indiana |
Mason & Latta, for appellant.
Ayres & Jones, for appellee.
The appellee sued appellant, and recovered a judgment against it for personal injuries, received while a passenger on one of appellant's street cars in the city of Indianapolis, and through the alleged negligence of the appellant. One of the errors assigned is the overruling of the appellant's demurrer to the complaint. This alleged error does not seem to be relied upon very confidently by the appellant's counsel. We have examined the complaint however, and think it is sufficient.
The principal contention arises upon the overruling of the appellant's motion for a new trial, assigned as error. The appellant requested the court to give the jury certain instructions, which request was refused, and the refusal is assigned as cause for a new trial.
Appellee's learned counsel contend, however, that the record fails to show affirmatively that it contains all the instructions given in the cause, and that, therefore, the refusal to give the instructions requested cannot avail the appellant.
It is an elementary principle, governing the procedure in appeals to this and the Supreme Court, that every presumption will be indulged in favor of the ruling of the trial court, until it has been made to appear affirmatively that some harmful error has been committed, for which a reversal of the judgment appealed from should be adjudged. It is a necessary corollary of this principle, that the court, on appeal, will presume that correct instructions were given by the trial court upon every material point in issue at the trial. This has been so often decided by the courts, that the citation of authorities cannot be necessary, and, indeed, it is not asserted in this case that the rule is otherwise. To overcome this presumption the appellant "must present a record fully and clearly showing that the trial court erred in refusing to give instructions." Elliott App. Proced., section 722.
Hence the bill of exceptions must show affirmatively, either by a direct statement, or by fair implication, that no other instructions were given save those contained in the bill. Town of Ladoga v. Linn, 9 Ind.App. 15.
In the transcript of order-book entries in this case, it is recited that the evidence being completed, Then follow two instructions, entitled "Plaintiff's instructions," which are signed by counsel for appellee, plaintiff below. This is followed by a memorandum of the clerk, thus: "For defendant's instructions, see bill of exceptions No. 2, page--, of the transcript."
After this memorandum there is set out what purports to be a series of instructions, given by the court, numbered consecutively from 1 to 6, inclusive, and signed by the trial judge. After these come other order-book entries, and in these it is stated that "the defendant files its bill of exceptions No. 2, herein, in the words and figures following, viz:" Then follows "bill of exceptions No. 2," containing the evidence given at the trial. It does not purport to contain any instructions or requests for instructions.
Next in order appears the following entry: "And afterwards, to-wit, on the 21st day of November, 1894, being the fifteenth judicial day of the November term, 1894, of said court, * * * the following proceeding was had herein, that is to say:
"Now comes the defendant, by counsel, and files its bill of exceptions No. 3, herein, in the words and figures following, namely:--" Then follows what purports to be "bill of exceptions No. 3," showing:
1. The instructions requested by the appellant, numbered from 1 to 5 inclusive, at the close of which it is stated that "each of which instructions was then and there refused by the court, and the said defendant, at the time, excepted to such refusal to give said instructions."
2. Then appears the following statement: "Be it remembered that afterward, on the said 20th day of March, 1894, after the argument of counsel before the jury in said cause, the court, of its own motion, instructed the jury in writing only, and gave each of the following instructions, to-wit:--"
This recital is followed by the same series of instructions heretofore referred to as having been made a part of the record by order-book entry, being the series of instructions given by the court, on its own motion, numbered consecutively from 1 to 6, inclusive. At the close of these instructions it is stated: "And thereupon said defendant, the Citizens' Street Railroad Company, at the time excepted to each of said instructions so given by the court, and to the giving of each of said instructions."
To this bill of exceptions the following certificate is attached: "And now, this 17th day of May, 1894, within the time so allowed by the court, the said defendant, the Citizens' Street Railroad Company, tenders this, its bill of exceptions, and prays that the same may be signed, sealed, and made a part of the record in said cause, all of which is done, this 21st day of November, 1894.
Also the following:
It is also shown by the order-book entries that on the 31st day of March, 1894, which was the 24th day of the March term, 1894, the defendant (appellant) filed its motion for a new trial, which was overruled, and the appellant was given forty-five days to file its bill of exceptions.
It appears that both "bill of exceptions No. 2" and "bill of exceptions No. 3" were presented on the 17th day of May, 1894, being the 10th judicial day of the May term, 1894, of the court, and filed November 21, 1894.
Does it sufficiently appear from the record that the instructions referred to as having been given by the court were all that were given?
If we are permitted to look to that portion of the record in which the instructions given are made a part thereof by an order of the court, and to the instructions as there set forth, we think it appears affirmatively, or at least by clear implication, that the instructions given by the court, as there set out, were all the instructions given in the cause. It is there shown, as we have seen, that "the instructions asked by the parties, respectively, and those given by the court, are * * * in the words and figures following," which statement is followed by the request for instructions of the appellee, and by the series of instructions numbered from 1 to 6, consecutively, as given by the court. If this statement contains the truth, as we must assume, it would not be possible that any other instructions were given than those contained in said series; for if "those given by the court * * * are in the words and figures following," it is inconceivable how there could have been others given which are not mentioned in the group following the statement.
It was not necessary that it should be stated in terms that the instructions set out were all the instructions given. It is sufficient if this is made to appear by fair implication, when the entire record is considered. Grubb v. State, 117 Ind. 277, 20 N.E. 257.
The question, therefore, recurs whether we may look to that portion of the record for an authentication of the instructions in which they are ordered to be made a part of such record.
A party may bring the instructions into the record by a bill of exceptions; or he may have the same made a part of the record under section 542, R. S. 1894, subd. 6.
A party may show that he excepted to the giving or refusal of instructions in two ways, viz:
1. By a bill of exceptions, reciting that at the time the exception was given or refused the party excepted.
2. By writing the exceptions on the margin or at the close of the instruction, over the signature of the judge.
If the latter course is pursued, no bill of exceptions is necessary, and the instructions are then brought into the record under section 542, supra.
Subdivision 6 of section 542, supra, provides that all instructions given by the court must be signed by the judge and filed, together with those asked and refused by the parties, but it is not necessary that the instructions be copied into the final record at large, unless either party may wish to appeal to a higher court. This provision, we think, specifies one of the methods by which instructions may be brought into the record.
But the subject of bringing a series of instructions into the record has no connection whatever, that we can see, with the matter of taking an exception to an instruction. The two things are entirely separate and distinct. There are likewise two ways as already observed, in which it may be shown to the appellate tribunal that an exception was reserved to an instruction, the one being by an endorsement on the margin, or at the close of the instruction, as provided in section 544, supra, and the other by recital in the...
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